PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING AND USING THE FLEET MANAGEMENT INTERFACE DEVELOPER KIT (“IDK”). THIS IS A LEGAL AGREEMENT BETWEEN YOU AND GARMIN. IF YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS, CLICK THE “I AGREE” BUTTON OR CHECK THE BOX DISPLAYED AT THE END OF THIS AGREEMENT. BY CLICKING “I AGREE”, CHECKING THE BOX OR BY DOWNLOADING, USING OR COPYING ANY PART OF THIS IDK, YOU ARE AGREEING ON YOUR OWN BEHALF AND/OR ON BEHALF OF YOUR COMPANY TO THE TERMS AND CONDITIONS STATED BELOW. IF YOU DO NOT OR CANNOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU CANNOT USE THIS IDK. IN THAT CASE, DO NOT DOWNLOAD OR USE THIS IDK.
“Agreement” means this IDK Agreement.
“Application” means one or more programs developed by You from using the IDK in compliance with the Documentation and for specific use with the Garmin GPS devices.
“Documentation” means any technical or other specifications or documentation that Garmin may make available or provide to You relating to or for use in connection with the IDK.
“Garmin” means Garmin, Ltd. and its subsidiaries.
“Program Requirements” mean the technical, human interface, design, product category, performance, and other criteria and requirements specified by Garmin, including but not limited to the current set of requirements set forth herein, as they may be modified from time to time by Garmin in accordance with this Agreement.
“Published API(s)” means the public and documented Application Programming Interface(s) contained in the IDK.
“IDK” (Interface Development Kit) means the Documentation, firmware, software (including source code and object code), , sample code, , tools, libraries, APIs, data, files, and materials provided or made available by Garmin and includes any Updates that may be provided or made available by Garmin.
“You” or “Your” means the person(s) or entity using the IDK or otherwise exercising rights under this Agreement. If You are entering into this Agreement on behalf of Your company, “You” or “Your” refers to your company as well.
2. IDK Internal Use License and Restrictions
2.1 Confidential Nature of IDK: The IDK is Garmin Confidential Information and subject to the confidentiality obligations of this Agreement. Distribution of the Applications and/or information contained in the IDK downloadable information are not permitted absent a separate agreement with Garmin.
2.2 Permitted Uses and Restrictions: Subject to the terms and conditions of this Agreement, Garmin hereby grants You during the Term, a limited, non-exclusive, personal, revocable, non-assignable, non-sublicensable and non-transferable license to:
(a) Install a reasonable number of copies of the IDK on Garmin products or computers owned or controlled by You, to be used internally by You or Your authorized users for the sole purpose of developing, testing, or using Applications; and
(b) Make and distribute a reasonable number of copies of the Documentation for internal use only and for the sole purpose of developing, testing, or using Applications. Garmin shall not be responsible for any costs, expenses or other liabilities You may incur as a result of Your Application development or use of this IDK.
2.3 Copies: You agree to retain and reproduce in full the Garmin copyright, disclaimers and other proprietary notices (as they appear in the IDK and Documentation provided) in all copies of the IDK and Documentation that You are permitted to make under this Agreement.
2.4 Ownership: Garmin retains all rights, title, and interest in and to the IDK and any Updates it may make available to You under this Agreement. You agree to cooperate with Garmin to maintain Garmin’s ownership of the IDK, and You agree to promptly provide notice of any claims relating to the IDK.
2.5 No Other Permitted Uses: You agree not to rent, lease, lend, upload to or host on any website or server, sell, redistribute, or sublicense the IDK, in whole or in part, or to enable others to do so. You may not use the IDK for any purpose not expressly permitted by this Agreement. You may not and You agree not to, or to enable others to, copy (except as expressly permitted under this Agreement), decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the IDK, or any part thereof. If You breach any of the foregoing restrictions, You may be subject to prosecution and damages. All licenses not expressly granted in this Agreement are reserved and no other licenses, immunity or rights, express or implied are granted by Garmin, by implication, estoppel, or otherwise.
2.6 Updates; No Support or Maintenance: Garmin may extend, enhance, or otherwise modify the IDK at any time without notice, but Garmin shall not be obligated to provide You with any Updates to the IDK. If Updates are made available by Garmin, the terms of this Agreement will govern such Updates, unless the Update is accompanied by a separate license in which case the terms of that license will govern. Garmin is not obligated to provide any maintenance, technical or other support for the IDK. You acknowledge that Garmin has no express or implied obligation to announce or make available any Updates of the IDK to anyone in the future.
3. Your Obligations
3.1 You certify to Garmin and agree that:
(a) You are of the legal age of majority in the jurisdiction in which You reside (at least 18 years of age in many countries) and have the right and authority to enter into this Agreement on Your own behalf, or if You are entering into this Agreement on behalf of Your company or organization, that You have the right and authority to legally bind Your company or organization to the terms and obligations of this Agreement;
(b) All information provided to Garmin by You will be current, true, accurate and complete;
(c) You will comply with the terms of and fulfill Your obligations under this Agreement and You agree to monitor and be responsible for Your use of the IDK and compliance with the terms of this Agreement; and
(d) You will be solely responsible for all costs, expenses, losses and liabilities incurred, and activities undertaken by You and Your authorized users in connection with the IDK, Your Applications and Your related development efforts.
3.2 Use of the IDK: You agree that:
(a) You will only use the IDK for the purposes and in the manner expressly permitted by this Agreement and in accordance with all applicable laws and regulations;
(b) You will not use the IDK for any unlawful or illegal activity, nor to develop any Application which would commit or facilitate the commission of a crime, or other tortious, unlawful, or illegal act; and
(c) To the best of Your knowledge and belief, Your Application does not and will not violate, misappropriate, or infringe any copyright, patent, trademark, trade secret, rights of privacy and publicity, or other proprietary or legal right of any third party or of Garmin.
3.3 Program Requirements for Applications: Any Application developed using this IDK must comply with these criteria and requirements, as they may be modified by Garmin from time to time:
For Applications that use location-based APIs:
- Applications may not be designed or marketed for the purpose of harassing, abusing, stalking, threatening or otherwise violating the legal rights (such as the rights of privacy and publicity) of others.
- Applications may not use any robot, spider, site search or other retrieval application or device to scrape, retrieve or index services provided by Garmin or its licensors, or to collect information about users for any unauthorized purpose.
4.1 Information Deemed Confidential: You agree that the IDK licensed hereunder, the terms and conditions of this Agreement, and any other non-public information that You learn about Garmin’s products, designs, research, development, know-how, or Garmin’s business, finances or personnel, or non-public third party information, in connection with this Agreement or in connection with Your use of any part of the IDK will be deemed “Garmin Confidential Information” under this Agreement.
4.2 Information Not Deemed Confidential: Garmin works with many application and software developers and some of their products may be similar to or compete with Your Applications. Garmin may also be developing its own similar or competing applications and products or may decide to do so in the future. To avoid potential misunderstandings, Garmin cannot agree, and expressly disclaims, any confidentiality obligations or use restrictions, express or implied, with respect to any information that You may provide in connection with this Agreement, including information about Your Application (such disclosures will be referred to as “Licensee Disclosures”). You agree that any such Licensee Disclosures will be non-confidential. Garmin will be free to use and disclose any Licensee Disclosures on an unrestricted basis without notifying or compensating You. You release Garmin from all liability and obligations that may arise from the receipt, review, use, or disclosure of any portion of any Licensee Disclosures. Any physical materials You submit to Garmin will become Garmin property and Garmin will have no obligation to return those materials to You or to certify their destruction.
Information that otherwise would be deemed Confidential Information but (i) is generally available to the public through no fault or breach of the recipient, (ii) is independently developed by the recipient without the use of any of the other party’s Confidential Information, (iii) was rightfully obtained from a third party who had the right to transfer or disclose it to the recipient without limitation, or (iv) any materials that do not impose confidentiality obligations on its use or disclosure.
4.3 Obligations Regarding Confidential Information: You agree to protect Garmin Confidential Information using at least the same degree of care that You use to protect Your own confidential information of similar importance, but no less than a reasonable degree of care. You agree to use Garmin Confidential Information solely for the purpose of exercising Your rights and performing Your obligations under this Agreement and agree not to use Garmin Confidential Information for any other purpose, or for Your own or any third party’s benefit, without the express prior written consent of an authorized representative of Garmin. You further agree not to disclose or disseminate Garmin Confidential Information to anyone, or to discuss anything about the Garmin Confidential Information with anyone, other than those of Your employees and contractors who have a need to know and who are bound by a written agreement that prohibits unauthorized use or disclosure of the Confidential Information, or except as otherwise agreed in writing by Garmin. You may disclose Garmin Confidential Information to the extent required by law, provided that You take reasonable steps to notify Garmin in writing of such requirement before disclosing the Garmin Confidential Information and to obtain protective treatment of the Garmin Confidential Information. You acknowledge that damages for improper disclosure of Garmin Confidential Information may be irreparable; therefore, Garmin is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies.
4.4 Press Releases and Other Publicity: You may not issue any press releases or make any other public statements regarding this Agreement, its terms and conditions, or the relationship of the parties without Garmin’s express prior written approval, which may be withheld at Garmin’s discretion.
You agree to indemnify, defend and hold harmless Garmin, its directors, officers, employees, independent contractors and agents (each a “Garmin Indemnified Party”) from any and all claims, losses, liabilities, damages, expenses and costs (including without limitation attorneys fees and court costs) (collectively “Losses”) incurred by a Garmin Indemnified Party as a result of Your breach of this Agreement, a breach of any certification, covenant, representation or warranty made by You in this Agreement, any claims that Your Applications violate or infringe any third party intellectual property or proprietary rights, or otherwise related to or arising from Your use of the IDK, Your Application(s) or Your development of Applications.
You acknowledge that the IDK is not intended for use in the development of Applications in which errors or inaccuracies in the content, data or information provided by the Application or the failure of the Application could lead to death, personal injury, or severe physical or environmental damage, and You hereby agree to indemnify, defend and hold harmless each Garmin Indemnified Party from any osses incurred by such Garmin Indemnified Party by reason of any such use. In no event may You enter into any settlement or like agreement with a third party that affects Garmin’s rights or binds Garmin in any way, without the prior written consent of Garmin.
6. Term and Termination
6.1 Term: The term of this Agreement shall commence upon Your installation or use of this IDK and will terminate automatically without notice from Garmin upon the first to occur of: (a) Your installation or use of a subsequent version of the IDK released by Garmin; or (b) termination as set forth in Section 7.2 below.
6.2 Termination: This Agreement and all rights granted by Garmin hereunder will automatically terminate without notice from Garmin if You or any of Your authorized users fail to comply with any term(s) of this Agreement. Garmin may also terminate this Agreement, orsuspend Your rights to use the IDK, if You fail to accept any new program requirements or Agreement terms as described above. Either party may terminate this Agreement for itsconvenience, for any reason or no reason, effective 30 days after providing the other party with notice of its intent to terminate.
6.3 Effect of Termination: Upon the termination of this Agreement for any reason, You agree to immediately cease all use of the IDK and erase and destroy all copies, full or partial, of the IDK and all copies of Garmin Confidential Information in Your and Your authorized users’ possession or control. At Garmin’s request, You agree to provide written certification of such destruction to Garmin. The provisions of Sections 1, 2.4, 2.5, 3.1(d), 3.2, 4, 5, 6, 7, 8, and 9 will survive any termination of this Agreement. Garmin will not be liable for compensation, indemnity, or damages of any sort as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement will be without prejudice to any other right or remedy Garmin may have, now or in the future.
7. NO WARRANTY
The IDK may contain inaccuracies or errors that could cause failures or loss of data and it may be incomplete. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE IDK IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. THE IDK ARE PROVIDED “AS IS” , WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND GARMIN AND GARMIN’S LICENSORS (COLLECTIVELY REFERRED TO AS “GARMIN”) HEREBY DISCLAIM ALL WARRANTIES ANDCONDITIONS WITH RESPECT TO THE IDK, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR APARTICULAR PURPOSE, ACCURACY, TIMELINESS, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. GARMIN DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE IDK, THAT THE IDK WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE IDK WILL BEUNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE IDK WILL BE CORRECTED, OR THAT THE IDK WILL BE COMPATIBLE WITH FUTURE GARMIN PRODUCTS OR SOFTWARE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GARMIN OR A GARMIN AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY. SHOULD THE IDK PROVE DEFECTIVE, YOU ASSUME THEENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. Location data provided by any service is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. either Garmin nor any of its licensors guarantees the availability, accuracy, completeness, reliability, or timeliness of location data or any other data displayed.
8. LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL GARMIN BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, YOUR USE OR INABILITY TO USE THE IDK, OR YOUR DEVELOPMENT EFFORTS, HOWEVER CAUSED, WHETHER UNDER A THEORY OFCONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF GARMIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT SHALL GARMIN’S TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00).
9. General Legal Terms
9.1 Third Party Notices: Portions of the IDK may utilize or include third party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are contained in the electronic documentation for the IDK, and Your use of such material is governed by their respective terms.
9.2 Assignment: This Agreement may not be assigned, nor may any of Your obligations under this Agreement be delegated, in whole or in part, by You by operation of law, merger, or any other means without Garmin’s express prior written consent and any attempted assignment without such consent will be null and void.
9.3 Relationship of Parties: This Agreement will not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between You and Garmin, and You will not represent to the contrary, whether expressly, by implication, appearance or otherwise. This Agreement is not for the benefit of any third parties.
9.4 Independent Development: Nothing in this Agreement will impair Garmin’s right to develop, acquire, license, market, promote, or distribute products or technologies that perform the same or similar functions as, or otherwise compete with, Your Applications or any other products or technologies that You may develop, produce, market, or distribute.
9.5 Severability: If a court of competent jurisdiction finds any clause of this Agreement to be unenforceable for any reason, that clause of this Agreement shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue if full force and effect. However, if applicable law prohibits or restricts You from fully and specifically complying with the Section of this Agreement entitled “IDK Internal Use License and Restrictions” or “Your Obligations” or prevents the enforceability of either of those Sections, this Agreement will immediately terminate and You must immediately discontinue any use of the IDK as described in the Section entitled “Term and Termination.”
9.6 Waiver and Construction: Failure by Garmin to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision. Any laws or regulations that provide that the language of a contract will be construed against the drafter will not apply to this Agreement.
9.7 Export Control: You may not use, export, re-export, import, sell or transfer the IDK except as authorized by United States law, the laws of the jurisdiction in which You obtained the IDK, and any other applicable laws and regulations. In particular, but without limitation, the IDK may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the IDK, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use the IDK for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
9.8 Government End Users: The IDK and Documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 .F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
9.9 Dispute Resolution: Any litigation or other dispute resolution between You and Garmin arising out of or relating to this Agreement, the IDK, or Your relationship with Garmin will take place in the State of Kansas; You and Garmin agree to submit to the personal and exclusive jurisdiction of the United States District Court for the District of Kansas and the Kansas state courts located in Johnson County, Kansas with respect any such litigation or dispute resolution. This Agreement will be governed by and construed in accordance with the laws of the United States and the State of Kansas, except that body of Kansas law concerning conflicts of law. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
9.10 Entire Agreement: This Agreement constitutes the entire agreement between the parties with respect to the use of the IDK licensed hereunder and supersedes all prior understandings regarding such subject matter. This Agreement may be modified only: (a) by a written amendment signed by both parties, or (b) to the extent expressly permitted by this Agreement. Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-English version, the English version of this Agreement shall govern. If You are located in the province of Quebec, Canada, the following clause applies: The parties hereby confirm that they have requested that this Agreement and all elated documents be drafted in English. Les parties ont exigé que le présent contrat et tous les documents connexes soient rédigés en anglais.